Jersey & Guernsey Law Review –
October 2011
EXTRADITION AT WHAT PRICE?
Shant Manok-Sanoian
The full impact of the Extradition (Jersey) Law
2004 (“the Law”) has recently been felt in Jersey as a result of
the decisions of the Royal Court
in De Figueiredo v Commonwealth of Australia.
This case was the first ever contested extradition to come before Jersey’s Royal
Court and therefore the first time that the
provisions of the Law have had to be considered and be the subject of a
judicial ruling. The outcome of the case therefore is highly significant. This
article examines the extradition procedures that were followed and considers
the key issues that arose out of the proceedings.
Background
1 The case arises out of a request made by
the Commonwealth of Australia on 29 January 2009 for the extradition of Mr de
Figueiredo (“the appellant”),
a chartered accountant of good character, from Jersey to Australia to face criminal charges
relating to an alleged conspiracy to evade the payment of income tax. In
essence, it was alleged that the appellant had taken part in a conspiracy with
a number of Australian tax payers to defraud the Commonwealth of Australia by
being involved in the implementation and operation of certain offshore schemes. The appellant had never been to Australia and the offences were alleged to have
been committed by him whilst he was working as an accountant in Switzerland. He
denied all and any wrongdoing.
The extradition procedure
2 The Law is modelled on the United Kingdom’s
Extradition Act 2003 and valuable guidance is available from the decisions of
the English courts in relation to comparable provisions of that Act. It follows
that the law and practice in England
is strongly persuasive when considering the procedure to be followed in Jersey.
3 It may be helpful at
the outset of this article to examine briefly the extradition procedure under
the scheme of the Law. Australia
is classed as a designated territory of the first category under the Law. Part
Two of the Law sets out the procedure to be followed where a designated
territory sends a valid extradition request to Jersey.
4 Upon receipt of a valid extradition
request, the Attorney General issues a certificate and sends the extradition
request and certificate to the Magistrate who will then issue a warrant for the
arrest of the person whose extradition is requested. The initial extradition
hearing takes place before the Magistrate whose function is to determine
whether all legal and procedural requirements under the Law have been
satisfied. One of the key questions the Magistrate must determine is whether
the offence specified in the extradition request is an “extradition
offence” under art 3 of the Law. This will be examined in more detail
below.
5 Once the Magistrate has determined that
the offence is an extradition offence, the Magistrate must then determine
whether there are any bars to extradition under art 16 of the Law. Article 16
sets out four bars to extradition and the Magistrate has to decide whether the
person’s extradition to the designated territory is barred by reason of
(a) the rule against double jeopardy; (b) extraneous considerations; (c) the
passage of time; and (d) hostage-taking considerations. If the Magistrate
decides any of these questions in the affirmative then the person is
discharged. If, however, the Magistrate decides each of these questions in the
negative, then the Magistrate must go on to consider whether the person’s
extradition would be compatible with his human rights within the meaning of the
Human Rights (Jersey) Law 2000. If the Magistrate decides that question in the
affirmative, then the Magistrate must send the case to the Attorney General for
a decision as to whether the person is to be extradited.
6 Upon receipt of the case from the
Magistrate, the Attorney General is required to consider, pursuant to art 30 of
the Law, whether he is prohibited from ordering the person’s extradition
under art 31 (relating to the death penalty), art 32 (relating to specialty) or
art 33 (relating to earlier extradition to Jersey from another territory) of
the Law. If the Attorney General decides that he is prohibited under any of the
above articles from ordering the person’s extradition then that person is
discharged. If, however, the Attorney General decides that he is not so
prohibited, then the Attorney General must order the extradition of the person
to the designated territory.
7 In the case of the appellant, the initial extradition
hearing took place before the Assistant Magistrate in 2009. The Assistant Magistrate
found that all the legal and procedural requirements for extradition had been
satisfied and that there were no statutory bars to extradition
and, further, that the extradition would be compatible with the appellant’s
human rights. The Assistant Magistrate accordingly sent the case to the
Attorney General who issued his order for extradition on 23 December 2009.
8 The appellant thereafter appealed against
the Assistant Magistrate’s decision and the Attorney General’s
order. There subsequently were two appeals heard by the Royal Court; one in
respect of the Assistant Magistrate’s decision and the other in respect
of the Attorney General’s order for extradition.
Appeal against the decision of the Assistant
Magistrate
9 The appellant’s first appeal was
against the decision of the Assistant Magistrate to send the case to the
Attorney General. There were three main grounds of appeal. The appellant argued
that the Magistrate had erred in fact and law in holding that—
(a) the
conduct for which extradition was requested amounted to an extradition offence
under the Law;
(b) it
was not unjust or oppressive to extradite the appellant; and
(c) the
extradition of the appellant was compatible with his human rights.
Extradition offence
10 In relation to the first ground, we must
first examine what precisely amounts to an extradition offence within the
meaning of the Law. The definition of extradition offence is found in art 3(2)
of the Law which provides that—
“(2)
The conduct constitutes an extradition offence in relation to the designated
territory if—
(a) the
conduct occurs in the designated territory;
(b) the
conduct would constitute an offence under the law of Jersey, punishable with
imprisonment or another form of detention for a term of 12 months or a greater
punishment, if it occurred in Jersey; and
(c) the
conduct is so punishable under the law of the designated territory”
11 The first question to be determined under
art 3(2) is whether the alleged conduct occurred in Australia. The Assistant Magistrate
held that the alleged conduct took place in Australia
even though the appellant had never set foot there as it
was sufficient that the effect of the appellant’s conduct was
intentionally felt in Australia.
The Royal Court
found that this was the correct approach to take and upheld the Assistant
Magistrate’s finding on this point. Therefore, it is now settled law that
a person does not have to be physically present in a particular territory for
that person’s conduct to have occurred in that territory. Rather, it is
the effect of that person’s conduct that is the determinative factor. In
this case, the alleged offences involved the removal of the proceeds of tax
evasion from Australia and
the transfer of such proceeds to various offshore accounts, which proceeds
would then be returned or repatriated to the alleged tax evaders in Australia via
various means. The effect felt in Australia, it was argued, was the
reduction of Australian tax which was the intended outcome of the alleged
conspiracy.
12 The second question to be determined
under art 3(2) is whether the conduct set out in the request would constitute
an offence under Jersey law if it occurred in Jersey.
This is based on the concept of dual criminality which lies at the heart of the extradition process. The object of
the dual criminality rule is that the offence for which extradition is ordered
should be within the criminal jurisdiction of both the requesting and the
requested state.
13 Lord Millett in R (Al-Fawwaz) v Governor of
Brixton Prison
held that the two requirements of
the dual criminality rule served two different purposes. The
first requirement, that the offence for which extradition is ordered should be
within the jurisdiction of the requesting state, serves a purely practical
purpose as there is no point in extraditing a person for an offence for which
the requesting state cannot try him. The second requirement, namely that the
offence should also be within the requested state’s own criminal
jurisdiction, serves to protect the accused from the exercise of an exorbitant
foreign jurisdiction.
14 In order to check that there is no
exorbitant foreign jurisdiction, the Court of the requested state has to carry
out a transposition exercise in order to assess whether the offence and the
conduct giving rise to it would be justiciable in the requested state. This is
relatively straightforward in cases where the entire conduct occurs in the
designated territory. By way of example, if someone robs a person in Sydney, Australia,
that conduct is simply transposed to Jersey and the question asked is whether,
if it occurred in Jersey, it would amount to an offence under Jersey
law carrying more than 12 months’ imprisonment. However,
complications can arise where the conduct occurs partly outside the designated
territory, as an issue will then arise as to whether that part of the conduct
which occurred outside the designated territory can be transposed to Jersey.
15 The appellant argued that the Australian
charges did not include an allegation of a false representation being made on
the part of the appellant and, further, that the evidence from the Australian
prosecutors did not show that the appellant had agreed with anyone to submit any
false tax returns. Making a false representation is a strict requirement and
constituent element of the offence of fraud under Jersey
law, following the principles set out in Foster
v Att Gen,
but it is not a constituent element of the offence under English or Australian
law. The appellant argued that because the requirements of Foster fraud had not in effect been alleged, the alleged conduct could
not constitute an offence under Jersey law
after the transposition exercise because of this missing constituent element. Therefore,
the conduct in question did not amount to an extradition offence within the
meaning of the Law.
16 The Royal Court rejected this argument
and held that the whole purpose of the conspiracy upon which the appellant had
allegedly engaged was the evasion of the payment of tax which could only be
achieved by deception and by the submission of false tax returns. The Royal
Court not only held that the submission of false tax returns was a reasonable
inference to draw from the evidence, it was also a necessary implication from
the evidence, as it was an integral part of the alleged offences that the appellant
had intended and envisaged that false tax returns would be filed with the
Australian authorities. Accordingly, the Royal Court found that all the offences
in respect of which extradition was requested amounted to an extradition
offence within the meaning of the Law.
17 The Royal Court also found that the
offences and conduct giving rise to them would be punishable under the law of Australia
with imprisonment for a term of 12 months or more. Therefore, the Royal Court held
that all the requirements of art 3(2) of the Law had been complied with and
dismissed the appeal under this head.
Unjust or oppressive?
18 The second ground of appeal, namely as to
whether it would be unjust or oppressive to extradite the appellant, was a
question of fact and the Royal Court sat with Jurats for
the purpose of deciding this issue. Article 19 of the Law provides—
“(19)
Passage of time
A person’s extradition to a designated territory is
barred by reason of the passage of time if (but only if) it appears that it
would be unjust or oppressive to extradite the person by reason of the passage
of time—
(a) since
the extradition offence was allegedly committed by the person; or
(b) since
the person is alleged to have become unlawfully at large,
as the case may be.”
19 The basic test in art 19 is whether
extradition has been rendered unjust or oppressive in all the circumstances due
to the passage of time. Lord Diplock in Kakis
v Government of the Republic of Cyprus held that the concept of “injustice”
was directed primarily towards the risk of prejudice to the accused at trial,
and the concept of “oppression”’
was directed to hardship to the accused resulting from changes in his
circumstances that have occurred during the period to be taken into
consideration.
20 The safeguard set out in art 19 is very important. Never perhaps more so
than when a foreign country on the other side of the world seeks to extradite a
citizen and native of Jersey who is of good character and who has never been to
or set foot in that foreign country.
21 An issue arose as to what precisely was
the relevant period of time for the Royal
Court to take into consideration. The case of Kakis referred to above clearly showed
that the
relevant period of time was the time between the date of the offence and the
conclusion of the extradition proceedings. However, the appellant went on to
argue that the Royal Court
should also take into account what would happen to him in Australia in
order to determine the question of whether it was unjust or oppressive to
extradite him. So while the prejudice must have taken place at the date of the
extradition proceedings, the appellant argued that the future consequences of
the prejudice already suffered were also a material part of the court’s consideration.
In effect, this was an argument that future hardship or oppression should also
be taken into account.
22 The
Commonwealth of Australia
argued that the relevant period
to be taken into consideration started from the date when the prosecuting
authorities had sufficient evidence to charge and therefore request extradition
and that the Jersey Court
was not entitled to take any future hardship or oppression into account. They
also referred to the decision of the House of Lords (now Supreme Court) in Gomes v Government of Trinidad and Tobago which held that the law had moved on since Kakis, in part because of the developing abuse of process
jurisdiction over the last 30 years, and that the essential question to ask when
considering injustice is whether a fair trial is impossible in the requesting
state taking into account the safeguards that exist in that requesting state.
23 The appellant was charged with offences
which allegedly took place some 15 years ago. Some of the witnesses who would
have been able to give evidence on behalf of the appellant were no longer available
to give evidence. The appellant argued that the combination of the
unavailability of evidence coupled with delay and the passage of time would
render a fair trial in Australia
impossible. Therefore, this would make it unjust and oppressive to order
extradition.
24 The appellant’s argument was
rejected by the Royal Court.
On the facts of the case, the Jurats decided that it would not be unjust or
oppressive to extradite the appellant by reason of the passage of time. The
Assistant Magistrate had earlier found that the unavailability of witnesses had
nothing to do with the passage of time and that adequate safeguards existed in Australia’s
legal system to protect the appellant against his trial being rendered unfair.
The Jurats upheld the Assistant Magistrate’s decision on this point.
Accordingly, this ground of appeal was dismissed.
Human rights
25 The final ground of appeal was whether
the Assistant Magistrate was correct in finding that extradition was not incompatible
with the appellant’s human rights within the meaning of the Human Rights
(Jersey) Law 2000, which incorporated the provisions of the European Convention
on Human Rights (“ECHR”) into the law of Jersey.
The relevant articles of the ECHR are art 6 which guarantees the right to a
fair trial and art 8 which guarantees the right to respect for private and
family life.
26 In relation to his art 6 rights, the appellant
tendered expert evidence and argued that there would be an unreasonable delay
in this matter reaching trial in Australia, were he to be
extradited, which would mean that he would not receive a fair trial in
Australia. The Royal Court agreed with the findings of the Assistant Magistrate
who found that there would not be any unreasonable delay, bearing in mind the
type of case and its complexity and the fact that the appellant would have an opportunity to argue for a stay of
proceedings due to delay, or any other unfairness, at his trial in Australia if
he wished to do so.
27 In relation to the appellant’s art 8
rights, the Royal Court
held that it was only in exceptional circumstances that the extradition of a
person would be held to be an unjustified or disproportionate interference with
the right to respect for family life. The consequences of interference with art
8 rights must be exceptionally serious before they can outweigh the importance
of extradition. The Royal Court went on to state that only the gravest effects
of interference with family life would be capable of rendering extradition
disproportionate to the public interest that it serves and that it would only
be in the rarest cases that art 8 would be capable of being successfully
invoked. This was not such a case. It should perhaps be noted that a person’s art 8 rights will
almost always be affected by the extradition process, as the separation of a
person from his family life and the distress and disruption that this causes
will be inevitable. The Royal
Court held that extradition in this case would not
breach the appellant’s human rights and accordingly dismissed the appellant’s
appeal against the decision of the Assistant Magistrate.
Appeal against the Attorney General’s order
28 The appellant’s second appeal was
against the Attorney General’s decision to order extradition. The crux of
the appeal concerned the principle of specialty. Specialty is an important rule which is intended to ensure that
an extradited person is only tried in a foreign country for the offences for
which he is extradited. It serves a
number of purposes; first to protect the judicial processes of the requested state
against abuse after it has relinquished jurisdiction over the person; second,
to reinforce the dual criminality rule considered above; and third, to protect
the extradited person from having to face a charge after being sent to the
requesting state of which he had no notice.
29 Before extradition can be considered
by the requested state, the requesting state’s adherence to the specialty
rule must be established. The inflexibility and the importance of the specialty
principle is perhaps reflected in the strict language of art 32(1) of the Law
which provides that “The Attorney General shall not order a
person’s extradition to a designated territory if there are no specialty
arrangements with that designated territory”.
30 It will be seen that art
32(1) refers to specialty arrangements with a designated territory. What
exactly does this mean? Insofar as a non-European Union country has agreed with
another to extradite, there will usually be a formal extradition treaty in
place setting out the requirements to be followed. However, as between Commonwealth
countries, extradition or specialty arrangements are usually put in place on a
case-by-case basis. It follows that whenever Jersey
receives an extradition request from a Commonwealth country, the Attorney
General must issue a certificate confirming the existence of specialty
arrangements with that particular country. In the case of the appellant, the
Attorney General issued a certificate in relation to specialty on 23 December
2009, the very same day the order for extradition was made. It is not known if
the specialty certificate was issued before or after the Attorney
General’s decision to order the extradition of the appellant.
31 Article 32(3) of the Law provides that—
“(3)
There are specialty arrangements with a designated territory if (but only if)
under the law of that designated territory or arrangements made between it and
Jersey, a person who is extradited to the designated territory from Jersey may
be dealt with in the designated territory for an offence committed before the
person’s extradition only where:—
(a) the
offence is one to which paragraph (4) refers; or
(b) the
person is first given an opportunity to leave the designated territory.”
32 Article 32(4) of the Law provides, so far
as is material, that—
“(4)
The offences to which this paragraph refers are:—
(a) the
offence in respect of which the person is extradited;
(b) an
extradition offence disclosed by the same facts as that offence, other than one
in respect of which a sentence of death could be imposed;
(c) an
extradition offence in respect of which the Attorney General consents to the
person’s being dealt with.”
33 Finally, art 32(6) of the Law provides
that—
“(6)
A certificate issued by or under the authority of the Attorney General
confirming the existence of arrangements with a designated territory that is a
Commonwealth country or a British overseas territory and stating the terms of
the arrangements is conclusive evidence of those matters.”
34 The words “but
only if” in art 32(3) and “conclusive evidence” in art 32(6)
of the Law demonstrate the strictness of the statutory language, which is
reflective of the absolute requirement that extradition must not be ordered in
circumstances where there is anything less than total compliance with all statutory
requirements. Indeed, the English Courts have repeatedly confirmed that
extradition procedures and rules must be strictly observed, Lord Hope having
stated that “the importance of this principle cannot be
over-emphasised”.
Grounds of appeal
35 Turning to the appeal itself, there were
two main grounds of appeal pursued by the appellant. The appellant argued that—
(a) the
order of the Attorney General did not state that he was satisfied that he was
not prohibited from ordering the appellant’s extradition under art
30(1)(b) of the Law (relating to specialty); and
(b) the Attorney
General was prohibited from ordering extradition because the specialty
arrangements set out in his certificate did not comply with art 32 of the Law.
36 When the Attorney General issued his order
for extradition on 23 December 2009, he did not state that he was satisfied
that he was not prohibited under art 30(1)(b)of the Law from ordering the appellant’s
extradition. In fact, what the order actually said was that the Attorney
General was satisfied that he was not prohibited from ordering the appellant’s
extradition under art 30(1)(a) (relating to the death penalty) and 30(1)(c) of
the Law (relating to earlier extradition to Jersey
from another territory). The order failed to mention anything about art
30(1)(b) of the Law.
37 Furthermore, the wording of the specialty
certificate issued by the Attorney General did not follow the exact wording of art
32 of the Law. It was contended on behalf of the appellant that the specialty
arrangements set out in the certificate were actually wider than the Law
required which meant that the appellant was exposed to the risk of being
prosecuted in Australia for
any offence not tied back to the law of Jersey.
This lead to the appellant arguing that the Attorney General’s decision
to order extradition was defective and, furthermore, that the Attorney General
was prohibited from ordering his extradition given that the
specialty arrangements in place with Australia were inadequate to guarantee his
minimum rights and protection.
38 Matters were somewhat complicated further
by the Attorney General issuing a second specialty certificate approximately
nine months later (in September 2010) in order to cure the defects in the
earlier specialty certificate. The appellant argued that the second specialty
certificate was inadmissible for a number of reasons; first, there had been no
new decision of the Attorney General to order extradition; second, the Attorney
General could not lawfully make a new decision as the scheme of the Law did not
permit a reconsideration of the Attorney General’s decision to order
extradition after it had already been made; and third, the Law did not permit the
issuance of two “conclusive evidence” certificates confirming the
existence of specialty arrangements. Even if the second certificate was ruled
to be admissible, the appellant argued that it was irrelevant as the wording of
it was still defective.
39 In addition, the Commonwealth of
Australia submitted affidavit evidence in order to explain the extent and
nature of its specialty arrangements with Jersey.
The Royal Court
admitted this affidavit evidence, despite the existence of English case law
clearly showing that extrinsic evidence was inadmissible in construing
identical statutory language to that in our Law.
The Royal Court,
however, was of the view that it was entitled to look at evidence that came in
after the making of the extradition order in deciding whether specialty
requirements had been complied with.
40 The Royal Court also held that the second
specialty certificate was admissible for the purposes of clarifying and
remedying the wording of the earlier defective certificate. It did not have the
effect of destroying the first specialty certificate or nullifying the Attorney
General’s order for extradition. The Royal Court was of the view that the
purpose of the specialty certificate was to enable the Court to be satisfied that
a sufficient arrangement was in place between Australia and Jersey and if a
slip occurred in the wording of the certificate, as was the case here, the
Royal Court would not be prevented from looking at the reality of the situation
or from receiving additional information or indeed a further specialty
certificate from the Attorney General. Curiously, the Royal Court held that it was unnecessary
to consider in any detail the status or validity of the first specialty
certificate.
41 The admissibility of
the second specialty certificate was procedurally unfair in the appellant’s
view, as the second specialty certificate clearly was not (and could not have
been) taken into consideration and the arrangements contained therein were not
yet in place when the Attorney General made his decision to order extradition
in December 2009. However, this point did not find favour with the Royal Court, nor
was it dealt with clearly in the reasoned judgment which followed.
42 The Royal Court went on to find that the
Attorney General’s failure in his order to make any reference to
specialty (namely art 30(1)(b) of the Law) did not invalidate his order for
extradition as, in the Court’s view, it was clear from all the evidence
that the Attorney General was well aware and had already considered the
question of specialty when ordering the appellant’s extradition. The appellant’s
appeal was accordingly dismissed.
Conclusion
43 It should be noted that leave to appeal to
the Privy Council was refused by the Royal
Court in respect of both appeals. The appellant
was extradited to Australia
in December 2010 and is currently awaiting trial.
44 It can be seen from the above that very
complex and undeniably technical arguments were put forward on behalf of the appellant
in the appeal hearings. This should come as no surprise and is perhaps to be
expected given that extradition proceedings, by their very nature, are complex
and involve much technical legal argument. It may be said that the outcome of
this case shows a degree of relaxation in judicial attitude to the necessity
for strict observance and compliance with technical requirements of the law in
the interests of comity and co-operation with other states. To that end, it is
arguable that the Royal Court
has taken a different approach to the technical requirements of extradition
legislation as compared with English Courts.
45 This case also raises interesting
questions concerning the degree of structural impartiality in respect of the
Attorney General and his functions. In the earlier stages of the extradition
proceedings, the Commonwealth of Australia was represented and advised by
representatives of the Attorney General from the Jersey Law Officers’
Department. The Attorney General is of course the ultimate decision maker as to
the extradition of a person and exercises his function in a quasi-judicial
capacity. It follows that if his department is also acting in the capacity as solicitor
to the requesting state, this may create the appearance of bias towards that
requesting state in relation to any decision the Attorney General has to make
under the Law.
46 This situation does
not occur in the United
Kingdom as the prosecution is carried out on
behalf of the requesting state by the Crown Prosecution Service
(“CPS”) and the decision as to extradition is taken by the
Secretary of State. The CPS and the Secretary of State are always separately
represented in any court proceedings in order to maintain independence and impartiality,
which concepts are often said to be the cornerstone of justice. A way of
remedying this problem in Jersey, and to avoid
the appearance of bias, would be for the requesting state to instruct private lawyers
at the outset of the extradition proceedings in order to maintain independence
and impartiality. Indeed, it will be interesting to see how extradition
proceedings are conducted in this jurisdiction in the future.
47 As a final note, it remains to be seen
what impact this particular extradition order will have on Jersey’s
financial services industry.
Shant
Manok-Sanoian LL.B. (Hons) (London), LL.M
(Cantab), Solicitor of the Senior Courts of England
and Wales,
is an Associate in the Litigation and Insolvency Department at Appleby. He
assisted Advocate Michael O’Connell who appeared for Mr de Figueiredo in
the extradition proceedings before the Assistant Magistrate and in the recent
appeals before the Royal Court.